Murillo-Contreras

MEMORANDUM **

Jesus Murillo-Contreras appeals his convictions for attempted illegal reentry after deportation and assault on federal officers. We affirm.

I

A

Because the motion for mistrial on grounds that the prosecutor’s closing argument impermissibly shifted the burden of proof was essentially contemporaneous with the challenged prosecutorial comments, we review for harmless error. See United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir.2000). Reversal is warranted only if “it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial.” Id. (citation omitted).

A prosecutor may comment on the defendant’s failure to present exculpatory evidence. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991). Comments highlighting a defendant’s failure to call witnesses do not shift the burden of proof so long as the prosecutor does not comment on the defendant’s failure to testify. See Cabrera, 201 F.3d at 1250 . Since Murillo-Contreras testified on his own behalf, and the prosecution’s argument was fairly made in response to defense counsel’s closing, the challenged comments do not implicate this concern.

Although the…